Brydges et al. v. Kinsman et al., (1990) 36 F.T.R. 216 (TD)

• Judge: McNair, J.
• Court: Federal Court (Canada)
• Case Date: December 19, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1990), 36 F.T.R. 216 (TD)

Brydges v. Kinsman (1990), 36 F.T.R. 216 (TD)

MLB headnote and full text

Neil E. Brydges, Mar-Mark Holdings Ltd., Jerome N. Muench, Bernard Lawlor, W. Paul Madge, Thomas L. Hugh, Steve Ozar, John Stewart Milvey, Francis John Bennett, William Slobodian, William M. Halford, Michael Kubrak, Jerome Fischer, Peter P. Fischer, Gordon J. Bosch, David W. Deane, Patricia M. Deane, Herman G. Doublet, Peter N. Elliott, Reuben W. Fuhr, Charles Roy Guest, Eleanor I. Guest, Harold B. Jacobsen, W. Gerald Kallies, Ronald A. Kuchinka, Richard E. Nichols, Volkmar H. Pohl, John E. Ross, John Tooth, Climax Investments Ltd., Douglas J. Vanderwater and Ernest W. Yaskowich (applicants) v. Jeremy K.B. Kinsman, Minister of Communications and Minister of National Revenue (respondents)

(No. T-396-89)

Indexed As: Brydges et al. v. Kinsman et al.

Federal Court of Canada

Trial Division

McNair, J.

July 31, 1990.

Summary:

In 1981 the taxpayers invested in a videotape informational series. Revenue Canada issued an advance ruling that the series qualified as a "Certified Short Production" and was therefore a class 12 depreciable asset under the Income Tax Regulations (i.e. 100% deduction of the capital cost allowance in one year). The series was certified as a qualifying production by the Minister of Communications. In 1986 it became apparent that the series was not completed. The Minister of National Revenue reassessed, disallowing the class 12 capital cost allowance claims. The taxpayers objected. The Assistant Deputy Minister of Cultural Affairs and Broadcasting (Kinsman) notified the taxpayers that their certified short production certificate was revoked. The Minister of National Revenue then confirmed the reassessment. The taxpayers applied under s. 18 of the Federal Court Act for, inter alia, judicial review of the decertification order made by Kinsman.

The Federal Court of Canada, Trial Division, dismissed the s. 18 application on the ground that the court lacked jurisdiction in light of s. 29 of the Federal Court Act.

Courts - Topic 4046

Federal Court of Canada - Jurisdiction - Trial Division - Requirement of lack of other appeals - [See Courts - Topic 4049].

Courts - Topic 4049

Federal Court of Canada - Jurisdiction - Trial Division - Income tax matters - The taxpayers were entitled to a class 12 depreciation allowance (100%) on a videotaped information series, because the series was certified by the Minister of Communications as a "Certified Short Production" - Subsequently, when the series was not completed, the Minister of National Revenue reassessed, disallowing the class 12 claims - The Deputy Minister of Communications also revoked the certification of the series - The taxpayers applied under s. 18 of the Federal Court Act for judicial review of the decertification order - The Federal Court of Canada, Trial Division, held that it lacked juris diction because s. 29 of the Federal Court Act deprived the court of jurisdiction where an assessment appeal was provided for in the Income Tax Act.

Cases Noticed:

Optical Recording Corp. v. Minister of National Revenue, [1987] 1 F.C. 339; 6 F.T.R. 294 (F.C.T.D.), refd to. [para. 11].

WTC Western Technologies Corporation v. Minister of National Revenue, (1985), 1 F.T.R. 119; 86 D.T.C. 6027 (F.C.T.D.), refd to. [para. 11].

Devor v. M.N.R., 88 D.T.C. 6370, refd to. [para. 14].

Special Risks Holdings Inc. v. Minister of National Revenue, 88 D.T.C. 6444, refd to. [para. 14].

Minister of National Revenue v. Parsons, [1984] 2 F.C. 331, appld. [paras. 14, 15].

Gibbs v. M.N.R., 84 D.T.C. 6418, refd to. [para. 14].

Bechthold Resources Limited v. M.N.R.(1986), 1 F.T.R. 123; 86 D.T.C. 6065, refd to. [para. 14].

Hart and Gunther's Building Centre v. Minister of National Revenue (1986), 4 F.T.R. 176; 86 D.T.C. 6335, refd to. [para. 14].

Danielson v. M.N.R. (1986), 7 F.T.R. 37; 86 D.T.C. 6495, refd to. [para. 14].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18 [paras. 1, 10, 14, 15]; sect. 29 [paras. 10, 11, 12, 15, 16].

Income Tax Act Regulations, C.R.C. 1978, c. 945, sect. 1104(2) [para. 4].

Counsel:

Thomas O. Davis, for the applicants;

Bruce Logan, for the respondents.

Solicitors of Record:

McDonald, Plotikins, Anderson and Company, Calgary, Alberta, for the applicants;

John C. Tait, Q.C., Deputy Attorney General of Canada, for the respondents.

This application was heard on December 19, 1989, in Calgary, Alberta, before McNair, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on July 31, 1990: